Interim measures in Portugal

1.1.1. Interim measures are mainly governed by the Portuguese Civil Procedure Code (CPC). 1 The Portuguese Civil Procedure Code was approved by Law No. 41/2013 of 26 June 2013, with all the amendments introduced up to and including the Law No. 122/2015 of 1 September 2015. Other provisions may apply to interim measures depending on whether:

1. (i) the claim or interim measure has an international connection;
2. (ii) the claim or the interim measure is governed by any specific provisions in Portuguese law; and
3. (iii) there are special provisions in Portuguese law relating to the particular subject matter of the claim.

1.1.2. For international cases, the provisions of international treaties, namely Council Regulation (EC) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation), supersede the CPC. These provisions relate foremost to jurisdiction and enforcement 2 Pursuant to article 35 of the Brussels Regulation, with respect to interim measures, applicants may request provisional, including protective, measures from the courts of a Member State which does not have jurisdiction on the merits. Such interim measure shall be governed by the law of the relevant Member State. .

1.1.3. Further, certain provisions of other laws may apply depending upon the subject matter of the interim measure sought, specifically:

• for claims governed by the Experimental Civil Procedure Act, the provisions of Decree-Law No. 108/2006 apply 3 Decree-Law No. 108/2006 of 8 June 2006, art 16. The Experimental Civil Procedure Act is only applicable to matters where the claim does not involve the payment of a particular sum. ;
• for protective measures regarding insolvency claims, the provisions of the Portuguese Insolvency Act apply 4 Decree-Law No. 53/2004 of 18 March 2004, art 31. ;
• for interim measures regarding child support and other forms of family maintenance, the provisions of the Jurisdictional Organisation of Minors Act apply 5 The Jurisdictional Organisation of Minors Act was approved by Decree-Law No. 314/78 of 27 October 1978. See art 186 to 190 of the aforementioned act. ;
• for interim measures regarding leasing contracts, the provisions of Decree-law No. 54/75 apply 6 Decree-Law no 54/75 of 12 February, with the wording that has been introduced by Decree - Law No. 178-A/2005 28 October 2005. ; and
• for interim measures relating to intellectual property, provisions in a number of other laws are relevant including those in the Industrial Property Code 7 The Industrial Property Code was approved by Decree-Law No. 36/2003 of 5 March 2003. .

2.1.1. Pursuant to the Brussels Regulation, applicants may file requests for provisional, including protective, measures with any court that has jurisdiction over the substantive case or in a court which has another connection to the matter in question (i.e. usually the place where the interim measure is to be enforced) 8 Brussels Regulation, art 35. See also, Portuguese Supreme Court of Justice, 16 December 2004, Case File No. 04B4076, www.dgsi.pt. . If a request is filed with a Member State court which does not have jurisdiction on the merits, the procedure is governed by the procedural law of that Member State court.

2.1.2. For domestic cases, before the substantive claim is issued, the applicant may file a request with any court that has territorial competence over the substantive case or with the court located where the interim measure will be enforced (e.g. the place of the assets to be attached) 9 CPC, art 78 and 364(1) and (2). . Once the main proceedings have been issued in respect of the substantive claim, the interim measure request can only be filed in the same court as the main proceedings 10 CPC, art 78 and 364(1) and (2). .

2.2.1. For cases within the scope of the Brussels Regulation, it is commonly understood from Portuguese jurisprudence and doctrine 11 Portuguese Supreme Court of Justice, 16 December 2004, Case File No. 04B4076; Appellate Court of Lisbon, 3 March 2007, Case File No. 696/2007-7, both in www.dgsi.pt. that an applicant may request interim relief from a Portuguese court even if the latter does not have jurisdiction over the substantive case on the merits pursuant to the applicable jurisdiction clause. The jurisdiction of the Portuguese court to issue an interim measure is dependent only upon the ability of the court to order, in due course, an immediately enforceable measure safeguarding the applicant’s rights that are at risk. Therefore the jurisdiction of the Portuguese court to issue an interim measure does not depend upon the validity or otherwise of the jurisdiction clause.

2.3.1. Once international and geographical jurisdiction is established, functional and subject-matter jurisdiction must be determined.

2.3.2. In the event that the applicant requests interim relief before the substantive claim has been issued, the competent court is as follows:

• for attachments, or the listing of assets to ascertain if attachments can be made, either: (a) the court that is competent to decide the main proceedings; (b) the court where the assets are located; or (c) in the event that the assets are in several locations, the court where some of the assets are located 12 CPC, art 78(a). ;
• for the suspension of works at a construction site, the court at the location where construction is taking place; 13 CPC, art 78(b).
• for the anticipated production and disclosure of evidence, the court that is competent to decide the main proceedings; 14 CPC, art 78(d). and
• for any other interim measures, the court that is competent to decide the main proceedings. 15 CPC, art 78(c).

2.3.3. Once the main substantive proceedings are filed, the (already commenced) interim measure proceedings will be linked to those proceedings. 16 CPC, art 78(2) and 364(1) and (2).

2.3.4. Where the applicant requests interim relief when the main proceedings are pending, the interim measures will be filed in the same court as the main proceedings and appended to that court file. 17 CPC, art 364(1) and (3). If the main proceedings are before an Appellate Court, the linking with the main proceedings will only be made after the application for interim relief has been decided by the first instance court or once the main proceedings return to the first instance court.

2.4.1. If different courts have jurisdiction over the same interim measure, the choice of where to file the request is a tactical one and has to be carefully considered. The following aspects might be considered when choosing the venue:

• the average duration of proceedings in the respective jurisdictions;
• whether a commercial court exists in one of the jurisdictions; for a request for interim relief dealing with specific technical or commercial issues, it can be helpful to have a judge with the relevant knowledge. However, it should be noted that the commercial courts in Portugal are overloaded with work which may make it difficult to expedite proceedings; and
• the wish to avoid long discussions about jurisdiction; the fewest problems as to jurisdiction will normally arise in the courts at the seat of the respondent and/or the place where the interim measure is to be executed.

3.1.1. In Portugal, interim measures are divided into two different categories: specific interim measures and common interim measures. The former are governed by specific provisions, whereas the latter are only triggered if there is no specific interim measure that applies to the circumstances of the case. Specific interim measures comprise the following: provisional restitution of possession 18 CPC, art 377 to 379. ; suspension of corporate resolutions; 19 CPC, art 380 to 383. provisional child and family support; 20 CPC, art 384 to 387. provisional compensation 21 CPC, art 388 to 390. ; attachment 22 CPC, art 391 to 396. ; suspension of works at a construction site 23 CPC, art 397 to 402. ; and listing of assets. 24 CPC, art 403 to 409.

3.1.2. Applicants should only seek common interim measures in the event there is no provisioned specific relief applicable to the subject matter of its claim. 25 CPC, art 362(3). The legal provisions relating to common interim measures set out the criteria for interim relief (set out below). 26 CPC, art 376.

3.1.3. Specific or common interim measures may be subdivided into three different subcategories: preventive measures, regulatory measures and performance measures.

Preventive measures

3.1.4. A preventive measure is meant to secure a claim by “freezing” an existent factual or legal situation until the case has been decided. Such measures do not satisfy the applicant’s claim, but safeguard its future enforcement.

3.1.5. The most commonly used preventive measure is the seizure of assets, by which the respondent is prevented from disposing of the attached assets. This also means that the applicant’s rights over the asset are not affected by new encumbrances granted over or the sale of such assets. 27 Portuguese Civil Code, art 619 to 621.

3.1.6. This category of measures includes specific interim measures such as the granting of attachments over assets to ensure the future enforcement of monetary claims or the listing of assets to ensure the future enforcement of non-monetary claims. A listing of assets will be applied in the event the applicant claims to be entitled to a certain asset and fears its loss or dissipation. In this case, the court will issue a freezing order over the assets based on the list which will include a description of the relevant assets, an evaluation of the value of the assets and a deposit of the assets with a depositary. The depositary acquires legal title in the assets while they are in its possession.

Regulatory measures

3.1.7. With a regulatory measure, the court orders the parties to a dispute to adhere to a certain way of operating within an on-going legal relationship. This is not usually limited to one single obligation, but regulates the entire relationship between the parties until the substantive case on the merits has been decided.

3.1.8. This category includes specific interim measures such as provisional restitution of possession; suspension of corporate resolutions; or the suspension of works at a construction site. At the respondent's request, the court can also order that construction may continue pending the outcome of the substantive proceedings, subject to the requirements or limitations set by the court. 28 CPC, art 401.

3.1.9. If there are no specific provisions applicable to the underlying substantive claim, then common protective measures pursuant to the general provisions of the CPC are available. The most typical examples are prohibitions on encumbering and alienating assets and forfeiture, bailment and other restraining orders, for example to prevent the triggering of a bank guarantee where there is evidence that the exercise of the said contractual right is not bona fides or is fraudulent. 29 Portuguese Supreme Court, 14 October 2004, Case File No. 04B2883, in www.dgsi.pt. For instance, in a first demand bank guarantee contract, the guaranteed party may seek an injunction to prevent the guarantor from paying the beneficiary in the event that there is clear evidence of blatant abuse or fraud of the call of the guarantee.

Performance measures

3.1.10. A performance measure orders the respondent to fulfil or partially fulfil an alleged obligation before the dispute has been decided. These injunctions are anticipatory in nature and do not supersede the final judgment. 30 Portuguese Appellate Court of Lisbon, 3 March 2009, Case File No. 3098/2005, in www.dgsi.pt. Specific interim measures such as provisional child and family support or provisional compensation are included in this category. In case the applicant loses in the substantive proceedings, the payments must be returned. 31 CPC, art 390.

3.1.11. If the underlying claim does not fall within a specific provision, the applicant may apply for a common interim measure for performance, which can either be a non facere (negative performance order prohibiting the respondent from doing something) or a facere (positive performance order).

3.2.1. There is no exhaustive list of possible common interim measures in the CPC. Applicants may seek any kind of interim measure as long as the relevant criteria are fulfilled. Likewise the court may order any provisional measure suitable for preventing imminent harm from occurring, and may even order a provisional measure different from the one requested by the applicant. 32 CPC, art 376(3). The court has a wide discretion when it comes to the form and content of an interim measure.

The criteria for interim measures

3.2.2. The applicant seeking to obtain an interim measure has to demonstrate credibly to the court that:

1. (i) the applicant has some form of right or entitlement in the underlying substantive claim;
2. (ii) the respondent violated such a right or threatens to violate it;
3. (iii) such violation is likely to cause the applicant prejudice which is not (or not easily) repairable;
4. (iv) there is urgency; and
5. (v) the requested measure is proportionate to the detriment caused to the respondent. 33 CPC, art 362(1), and (2), 363 and 368(1)-(3).

The existence of a substantive claim (fumus bonus iuris)

3.2.3. The applicant must demonstrate credibly an underlying substantive right or claim (e.g. a debt owed or a right to performance). 34 CPC, art 362(1), 368(1), 388 no 2, 392(1) and 406(1). The interim measure must aim at safeguarding this underlying right. The underlying right invoked by the applicant may be dependent upon a later judicial decision. 35 CPC, art 362(2).

3.2.4. The CPC only requires sumario cognitio or a high-level, swift examination of the evidence of the underlying right. Therefore, if the interim measure is filed while the main proceedings are pending and there is already a decision unfavourable to the applicant, the fumus bonus iuris (likelihood of success on the merits) is not established.

The threat to the substantive claim

3.2.5. The underlying right must be threatened by possible harm caused by a positive or a negative action of the respondent. Where the respondent has already violated the applicant’s right in the past, there is a presumption that it will do so again in the future. Moreover, there must be an objective appraisal of whether the harm is likely to occur.

3.2.6. The interim measure must prevent further damage. 36 CPC art 362(1) and 368(2). Interim measures cannot be obtained in respect of damage that has already occurred.

The harm is not easily repairable

3.2.7. The applicant must demonstrate credibly that it would face an injustice which is not (or not easily) repairable if the interim measure is not ordered. 37 CPC art 362(1). Examples include:

• loss of reputation;
• loss of customers;
• financial damage that is not easily repairable (for example the respondent is unlikely to be able to pay for the damage caused by its behaviour);
• imminent harm that would later be difficult to judge, quantify or prove (for example harm caused by counterfeit products); or
• enforcement becoming more complex if it is executed later.

3.2.8. Portuguese jurisprudence has consistently held that in order for an interim measure to be ordered, the applicant must prove that financial compensation is inadequate or that the respondent is unlikely to be able to pay for such damages in the future 38 Portuguese Supreme Court of Justice, 28 September 1999, Case File No. 99A678, 15 September 2010, Case File No. 335/10.4TTFUN.L1-4. See also, Appellate Court of Coimbra, 22 November 2005, Case File No. 3025/05; and Appellate Court of Guimarães, 1 January 2012, Case File No. 122/08.0TBPTB-B.G1. See also A Geraldes, Temas da Reforma do Processo Civil (III) p 103. . Notwithstanding this, in the event there is no concern regarding the debtor’s ability to bear the damage caused, an interim measure will be granted if it is intended to prevent non-monetary damage.

Urgency (periculum in mora)

3.2.9. There must be a need for urgent action in order to avoid the imminent and irreparable (or not easily repairable) harm. An interim measure might be denied if the sole reason for urgency is that the applicant delayed filing the request without any valid reason for doing so. Conversely, an applicant cannot be blamed if: (i) it first tried to find an amicable solution; (ii) it initially imposed a deadline on the opposing party and waited until the deadline lapsed; or (iii) clarification of the factual or legal situation was necessary and time-consuming.

Principle of proportionality

3.2.10. The court has to observe the principle of proportionality when deciding which measure to order and how to ensure that the applicant’s right can be secured. Pursuant to the CPC, the court must balance the parties’ interests and deny the request for interim measures where there is even the mildest possibility that the interim measure inflicts considerably more harm to the respondent than it prevents from the applicant. 39 CPC, art 368(2).

3.2.11. If the opposing rights are of the same nature (monetary or non-monetary interests), the balance of interests is relatively easy to establish. However, whenever confronted with different types of interests, on principle the courts tend to protect absolute rights (e.g. personal or intellectual property rights) over monetary interests. 40 Portuguese Appellate Court of Évora, 2 February 2001, CJ vol I p 267.

Filing of the main proceedings

3.2.12. Aside from situations where interim proceedings are filed while the main proceedings are ongoing, the main action must be filed within 30 days of the outcome of a successful application for interim measures being notified to the respondent 41 CPC, art 373(1)(a). .

3.2.13. The court may also release the applicant from commencing a claim if it is convinced of the existence of the underlying substantive right or claim and the interim measure is able to regulate the litigation with certainty (“inversão do contencioso” or “transfer of the burden of the filing of the main proceedings to the respondent”) 42 CPC, art 369(1). . Such release must be requested by the applicant before the end of the final hearing in the interim proceedings. If approved by the Court, in the event the respondent wishes to reverse the grounds of the final interim decision rendered, the burden of commencing the main proceedings is transferred to the respondent. If the interim measure was sought as an ex parte measure, the respondent may object to the transfer of this burden in its subsequent defence which it files within the scope of the interim proceedings. 43 CPC, art 369(2).

3.3.1. As stated above, specific interim measures are governed by specific provisions and, in their absence, by the regime governing common interim measures. However, there is one criterion for common interim measures which is not applicable to specific interim measures pursuant to the CPC: the principle of proportionality. 44 CPC, art 376(1). Each specific interim measure is considered separately on its own merits. Yet, if the applicant seeks an attachment over more assets than the ones needed to guarantee its credit, the attachment order shall be reduced to its just limits.

The criteria for attachment orders

3.3.2. The attachment order is the most important specific interim measure and therefore discussed in more detail.

3.3.3. Pursuant to the CPC, a creditor may apply for the attachment of a debtor’s assets in the case of an unsecured claim (which need not necessarily be overdue) if it demonstrates to the court that the debtor is concealing its assets, absconding or making preparations to abscond in order to evade the fulfilment of its obligations.

3.3.4. The court at the place where the assets are located will issue an attachment order in an ex parte procedure if the creditor is able to present prima facie evidence that:

1. (i) it has a claim;
2. (ii) the debtor is concealing its assets, absconding or making preparations to abscond; and
3. (iii) there are available assets belonging to the debtor. 45 CPC, art 391 to 396.

3.3.5. When granting an attachment order, the judge will entrust an enforcement officer with its execution. Once the assets are seized, the debtor and third parties may file an objection with the judge who issued the order within ten days of receiving notice of the order or, alternatively, they may appeal to the court where the decision was rendered within 15 days of notice of the order. 46 CPC, art 372.

3.3.6. If the creditor did not institute enforcement proceedings or bring a court action before applying for the attachment order, it must do so within ten days of serving the attachment order on the respondent 47 CPC, art 373. . Otherwise, the seizure of the assets will be lifted.

3.4.1. In Portugal – as in most civil law jurisdictions – the taking of evidence is administered by the court and done at a prescribed moment during the litigation process. To ease the drawbacks of this rigid system, the preliminary or preventive taking of testimonial or expert evidence by the court is allowed at any time, including prior to the start of the main proceedings, if the applicant can demonstrate that witness testimony or expert evidence is at risk. 48 CPC, art 419 and 420.

3.4.2. Witness testimony or expert evidence is at risk if it may cease to exist or may be altered before the commencement of ordinary evidentiary proceedings. Examples of evidence at risk are where a witness is fatally ill or where a building is likely to collapse.

3.4.3. The procedure regarding the preventive taking of evidence is the same as for other interim measures. The applicant need not conclusively prove, but must demonstrate credibly, the grounds for its request. The request can be filed at the venue that has jurisdiction as to the substantive claim or, alternatively, where the preventive taking of evidence has to be executed. The procedure is always ordered with due consideration to the principle of fair and equal treatment of the parties.

3.5.1. In principle, interim relief measures are ordered after the respondent has been granted the right to be heard, with the following exceptions:

• if the applicant credibly demonstrates that the hearing of the respondent puts the effectiveness and the purpose of the interim measure at risk, in which case it shall be issued as an ex parte measure; 49 CPC, art 366(1).
• provisional restitution of possession is always issued as an ex parte measure where the dispossession was the result of violence; 50 CPC, art 365. and
• attachments are also always issued as ex parte measures 51 CPC, art 393. .

3.5.2. In order to show that the effectiveness and the purpose of the interim measure would otherwise be put at risk, the applicant must demonstrate credibly that there is urgency or that granting the respondent the right to be heard would render the measure useless. Situations such as the inability to serve the respondent can also result in an ex parte hearing.

3.5.3. Promptly after ordering an ex parte measure, the court will give the respondent a short period in which to file a written statement of defence regarding the ordered measure or, alternatively, to appeal such a measure.

3.5.4. A written statement of defence may be filed if the respondent alleges facts or produces evidence that have not been taken into consideration by the court and that can affect the grounds of the measure or lead to its amendment or a reduction in its severity. If the respondent opposes the ex parte measure and if witness testimony is required the court will summon both parties to a hearing. 52 CPC, art 366(6). Afterwards the court will either lift the measure or confirm that the interim measure will remain in place. 53 CPC, art 72(2).

3.5.5. Alternatively, if the respondent does not have further facts to allege or new evidence to produce, then it may appeal. 54 CPC, art 372(1)(a). The respondent may appeal if it considers that the court’s findings should not have led to the measure being granted.

Form of the request

4.1.1. Interim measures are subject to the rules applicable to incidental proceedings within the scope of the main proceedings. 55 CPC, art 365(3). The interim application is always filed in writing. The CPC also allows electronic writs incorporating an authorised electronic signature.

Content of the request

4.1.2. The request has to include a comprehensive prayer for interim relief and to name the grounds on which the request is based. The principle of party autonomy prevents the court from awarding more than the applicant requested. However, following the principles of a maiore ad minus and proportionality, the court can and should order a lesser measure if the applicant’s right which is at risk can be secured by such lesser measure.

4.1.3. As mentioned above, notwithstanding the applicant’s request, the court may order any provisional measure suitable to prevent the alleged imminent harm. 56 CPC, art 376(3). The court has a wide discretion when it comes to the form of an interim measure.

Enclosures of the request

4.1.4. The applicant must attach all evidence to its request that it wishes to adduce in support of its application for an interim measure 57 CPC, art 293 ex vi art 365(3). . As it is within the court’s discretion to conduct the case after it has received the interim application (e.g. to summon the parties to a hearing or to give the respondent a short time in which to file a written answer), the applicant might be prevented from producing testimonial evidence later. 58 CPC, art 370(1).

4.2.1. Interim measures are urgent proceedings. After the request is received and unless an ex parte measure is sought, the court will have to judge the interim measure within two months. If an ex parte measure is to be ordered, then the interim measure has to be decided within 15 days. Nonetheless, those deadlines are merely indicative, as there are no consequences for any party if such deadlines are not met.

4.2.2. If a request is obviously unfounded or inadmissible, the court will dismiss it without taking further action. If the respondent does not submit its statement of defence within the allocated time or does not appear at the hearing, the proceedings will continue without the respondent’s statement of defence or presence. 59 CPC, art 366(5).

Limitation of evidence

4.3.1. Both documentary and testimonial evidence are permitted. 60 CPC, art 293 and 294 ex vi art 365(3).

4.3.2. Documentary evidence is interpreted in a broad way, including every document suitable to prove the relevant facts, such as papers, drawings, plans, photos, films, audio recordings, electronic files and e-mail print-outs. 61 Portuguese Civil Code, art 362. Documentary evidence must be presented as part of the application for an interim measure or can be added at a later point in time to the case bundles as follows 62 CPC, art 423(1) and (2), and Portuguese Supreme Court of Justice, 9 February 1995, in BMJ 444.º/542. Initially, this question was debatable and there was some jurisprudence that established that the documents should be added to the case bundles solemnly with the Statement of Claim/Application for interim measures. :

1. (i) The documentary evidence shall be filed with the application in which the corresponding facts are alleged;
2. (ii) If the documents are not added with the filed application, they can be filed up to 20 days before the date of the final hearing, but the party is required to pay a fine, except if that party can demonstrate that the documents provided could not have been filed earlier with the application; and
3. (iii) After 20 days before the hearing, the Court will only admit additional documents when it had not been possible to file until that time, as well as documents that have only become necessary following a subsequent event that could not have been foreseen at an earlier stage.

4.3.3. However, if the applicant cannot demonstrate to the court that the new documents being added are superseding or supervening documents, it will be required to pay a small fine (usually, between EUR 102.00 to EUR 204.00).

4.3.4. Testimonial evidence is limited to five witnesses from each party (each applicant and each respondent), without any limitation on the number of these five witnesses which can be heard for each alleged fact. 63 CPC, art 294(1). Testimonial evidence must be requested in the initial application filed within the scope of the interim proceedings.

Standard of proof – “prima facie evidence”

4.3.5. The applicant has to produce evidence for the facts alleged in its application pursuant to the general requirements for the burden of proof. 64 CPC, art 362(1). Moreover, the applicant has to provide sufficient facts to enable the respondent to understand the case against it and to present its defence. Otherwise, the application is considered to be null and void.

4.3.6. While the applicant has to produce the evidence according to the general requirements, the standard of proof subsequently applied to this evidence is lower. Pursuant to jurisprudence of the Portuguese Supreme Court, one of the consequences of the sumario cognitio or the swift examination of the cause of action is the standard of proof that is required of the applicant 65 Portuguese Supreme Court of Justice, 19 December 2001, in www.dgsi.pt. . The applicant does not have to fully prove the facts alleged in its application, it has only to summarily demonstrate them or demonstrate they are likely to be true, i.e. making a claim credible requires more than a simple allegation, but less than strict proof. The facts must be supported by some documentary evidence and the substantiation of the facts must be of such a quality that, following a prima facie assessment, the judge comes to the conclusion that the applicant’s allegation is likely to be true, without all doubts being ruled out. Some commentators refer to credibility as “the proof of likeliness” or “prima facie evidence” 66 L de Freitas, Código do Processo Civil anotado (vol II) p 35; T de Sousa, Estudos sobre o novo processo civil p 233. .

4.3.7. The courts have substantial discretion when assessing whether or not the standard of proof is met. In many cases, it will simply come down to the judge’s instinct when considering whether a case is credible. This shows the importance of a convincing request and compelling evidence. It is therefore not surprising that, in many cases, the length of an interim measure request is not very different from a full statement of claim.

5.1.1. The respondent can present counter-arguments and evidence in a written statement of defence. In principle, the same restrictions as those relating to the applicant’s evidence apply. However, while the applicant has to make the facts of its case credible, the respondent needs only to effectively challenge the credibility of the facts alleged by the applicant.

5.2.1. The court is required to apply the principle of proportionality as explained in paragraph 3.2.10 above. 67 CPC, art 368(2).

5.3.1. After the interim measure order has been made, the respondent may request the substitution of the provisional measure by security 68 CPC, art 368(3). . In its request, the respondent has to demonstrate that the security is sufficient to prevent further damage to the applicant or to guarantee the value of the applicant’s claim. Some commentators consider that it is not permissible to substitute a specific provisional measure by security (such substitution would only be allowed in the case of a common interim measure). 69 See A dos Reis, Código do Processo Civil Anotado (vol I) p 674. Despite this view, such substitution is generally accepted by the jurisprudence. 70 Please see the judgment issued by the Appellate Court of Lisbon, 09 October 2008, Proc. No. 7813/2008-2, www.dgsi.pt; See also the judgment issued by the Appellate Court of Guimarães, 29 January 2009, Proc. No. 2819/08-1, www.dgsi.pt.

5.3.2. The court may also request such security of its own volition in cases involving common interim measures, attachment or enrolment proceedings (i.e. proceedings for the listing of assets). 71 CPC, art 374(2) and 376(2).

5.3.3. After filing its request, the respondent shall add proof that either it has the means to pay or has made payment to the case bundles.

5.3.4. If the interim measure is substituted by security, the interim order is immediately withdrawn. 72 CPC, art 373(2).

5.4.1. The respondent’s interests are also safeguarded by its right to seek compensatory damages where an unjustified interim measure was granted. 73 CPC, art 374(2).

5.4.2. Even where the requirements for a compensatory damages claim are met, if the applicant is able to prove that it had sought the measures with the necessary caution, the court may reduce the damages or entirely release the applicant from liability. 74 CPC, art 374 no(1). According to Portuguese jurisprudence, the application is considered to have been made with necessary caution if, at the time the application was made, it was justifiable for objective, factual reasons, even if the application is subsequently proven to be wrong. 75 Please see the judgment issued by the Portuguese Supreme Court of Justice, 12 January 2012, Proc. No. 1472/06.5TVLSB.L1.S1, www.dgsi.pt. This threshold is not very high. However, the applicant cannot claim it acted in good faith if it withheld evidence that would have been unfavourable to its position.

5.4.3. A damages claim for unjustified interim measures must be brought within three years of the date on which the respondent became aware of such damage. 76 Portuguese Civil Code, art 498(1).

6.1.1. As explained in paragraph 2.1.2 above, before the substantive claim is pending, the applicant may file a request with any court that has territorial competence over the substantive case or with the court located where the interim measure will be enforced. Once the main proceedings are pending, the interim measure request can only be filed with the same court as the main proceedings.

6.2.1. As stated in paragraph 4.2.1 above, pursuant to the CPC, interim measures are urgent proceedings that should be decided on within 15 days of the application if it is an ex parte order or within two months if the respondent files a defence. These deadlines are merely indicative, as there are no consequences for any party from the Court if such deadlines are not met. However, as a rule, requests for interim measures are decided quickly, even though the timelines contained in the CPC are not usually complied with. This is particularly true in the event of a request for an ex parte injunction. If the urgency is obvious, the court will issue its order within one or two working days.

6.2.2. There are cases where the issuance (or denial) of an interim measure can take considerably longer. Usually, this is because the court is not convinced that the matter is urgent and/or feels that the applicant could have filed its request much earlier but failed to do so without any apparent reason. In addition, varying standards of case management and sophistication of the local courts can result in differences as to the length of time taken for the court to issue an order.

6.3.1. As stated in paragraphs 3.2.12 and 3.2.13 above, in the event the interim proceedings are not filed while the main proceedings are ongoing and there is no release to file the main action, then, the main action must be filed within 30 days of the outcome of a successful application for interim measures being notified to the respondent 77 CPC, art 373(1)(a). . Failing to do so will result in the automatic ineffectiveness of the ordered interim measure.

6.3.2. The interim measures will remain in place for so long as is necessary to the relevant measures to be carried out; until the substantive proceedings are concluded; or as otherwise ordered by the Court

7.1.1. Court costs for interim measures are not significant. The court fees that shall be paid when filing the initial application are as follows:

• if the amount at stake is less than EUR 300,000, the court costs are EUR 306;
• if the amount at stake is at least EUR 300,000.01, the court costs are EUR 816; and
• if the specific interim measure filed comprises the provisional restitution of possession or provisional compensation, the advance on costs is EUR 102.

7.1.2. The respondent must pay the same court fee when he submits his answer to the application. If the respondent does not pay the fee, the court will disregard his response.

7.1.3. An applicant should also take into account the actual costs of its own representation.

7.1.4. The court does not reimburse the court fees paid by the parties. Rather, the successful applicant has to seek reimbursement of the court costs and the costs of professional representation from the losing party. Compensation for professional representation costs is limited to 50% of the total amount of court fees advanced by both parties as per paragraphs 7.1.1 and 7.1.2 above. If the losing party refuses to pay, the successful applicant will have to initiate enforcement proceedings.

8.1.1. Pursuant to the CPC, a provisional measure may be modified or revoked if:

• the applicant fails to file the main proceedings within the specified time limit;
• the main proceedings are suspended by the direct conduct of the applicant;
• the main proceedings are dismissed on the grounds of res judicata; or
• the subject/substantive matter has ceased to exist 78 CPC, art 373. .

8.1.2. In general, the request to modify or revoke the interim measure must be filed with the court that ordered the interim measure. However, if the main underlying claim is started in a different court, any application for modification or revocation of the interim measure should be brought before that court.

Outline of the Portuguese appellate system

8.2.1. The CPC provides for two main remedies against an interim measure decision: an appeal and a complaint. The main instrument is an appeal; the complaint functions as a subsidiary remedy where an appeal is not permitted.

Appeal

8.2.2. An appeal can be brought against the decision of the first instance court on the interim application (ex parte interim measure or not) if the amount at stake is at least EUR 5,000.01. The appellate court is vested with full powers to review the case, i.e. the appellant can challenge both the application of the law and the establishment of the facts. 79 CPC, art 662.

8.2.3. The appeal must be filed in writing directly before the originating court (the court of first instance), within 15 days of the notification of the order rendered by the Court. 80 CPC, art 638(1). It is not possible to file an appeal of an interim measure to the third instance court, namely the Supreme Court of Justice.

8.2.4. The appeal does not automatically result in the suspension of the enforcement of the interim measure. However, on request and exceptionally, the court may suspend the enforcement of an interim measure if such enforcement would cause harm not easily repairable to the respondent and it submits a security/guarantee to the court. 81 CPC, art 647(4).

8.2.5. The responding party has 15 days to file its answer to the appeal.

9.1.1. There is no separate enforcement procedure for enforcing interim measures as the court ordering the interim measure also has the power to order the necessary enforcement measures. 82 CPC, art 362(1). However, it is up to the applicant to seek the relevant enforcement measures from the court if required.

9.1.2. Such enforcement measures may simply be notification of the decision to the respondent or it may require the attachment of the relevant assets which can be enforced by the notification to third parties or public entities. If the enforcement measure is reliant upon the cooperation of the respondent, the applicant may file enforcement proceedings if the respondent fails to perform the relief ordered. 83 CPC, art 703(a) and 704.

9.2.1. If an order for an interim measure was issued in a contracting state of the Brussels Regulation, enforcement follows the provisions of this treaty. With regard to enforcement of interim measures issued by courts in Iceland, Switzerland or Norway, the Lugano Convention applies. 84 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, 30 October 2007 (Lugano Convention). For all other cases, enforcement follows the rules of the CPC.

Enforcement under the Brussels Regulation

9.2.2. An interim measure issued in a member state of the Brussels Regulation will be recognised and enforced in Portugal in accordance with the rules of the Brussels Regulation 85 Brussels Regulation, art 35. . In general, enforcement is swift and usually possible without any major issues or hurdles.

9.2.3. While the provisions of Portuguese law regarding the right to be heard do not require the foreign interim measure to be issued after a hearing, the respondent must have had the opportunity to express its view on the interim measure in the country of origin before enforcement in Portugal is sought. 86 Law No. 63/2011 of 14 December 2011, art 20. This case law frustrates the enforcement of foreign ex parte interim relief orders under the Brussels Regulation and a surprise cross-border raid is not possible. If an applicant wants to take the respondent by surprise, it will have to file a request for ex parte measures in Portugal.

Enforcement under the CPC

9.2.4. The recognition and enforcement of the decisions of courts in countries which are not members of the Brussels Regulation are governed by the CPC. An application for enforcement must be made in the Portuguese Courts.

10.1.1. Prior to the constitution of the arbitral tribunal, an application for interim measures may be filed with the state court.

10.1.2. There is no unanimous doctrine as to whether the competent state court has (alternative) jurisdiction after the constitution of the arbitral tribunal. We support the prevailing opinion that there is alternative jurisdiction of the state courts and the arbitral tribunal for interim measures, unless the parties have explicitly agreed to the contrary.

10.2.1. After constitution of the arbitral tribunal, and unless otherwise agreed, the arbitral tribunal may grant any interim measures it deems necessary in relation to the subject-matter of the dispute upon the request of a party and after hearing the other party.

10.2.2. For the purposes of the Law on Voluntary Arbitration 87 Law No. 63/2011 of 14 December 2011. , an interim measure is a temporary measure, whether in the form of an award or in another form, by which, at any time prior to the issuance of the award by which the dispute is finally decided, the arbitral tribunal orders a party to: 

• maintain or restore the status quo pending determination of the dispute;
• take action to prevent, or refrain from taking action, that is likely to cause harm or prejudice to the arbitral process itself;
• provide a means of preserving assets out of which a subsequent award may be satisfied; or
• preserve evidence that may be relevant and material to the resolution of the dispute.

10.2.3. Furthermore, interim measures shall be granted by the arbitral tribunal as long as:

• there is a serious probability that the right invoked by the requesting party exists and the fear that such right will be harmed is sufficiently evidenced; and
• the harm resulting from the interim measure to the party against whom the measure is directed does not substantially outweigh the damage the requesting party wishing to avoid with the measure.

10.3.1. While the 1958 New York Convention (New York Convention) governs the recognition and enforcement of any foreign arbitral award in Portugal, interim orders are not final and, for this reason, do not qualify as awards enforceable under the New York Convention. However, arguably, foreign arbitral tribunals may also seek the assistance of the state court at the place of enforcement if a party does not voluntarily comply with an interim award.

CMS Rui Pena & Arnaut
Rua Sousa Martins, 10
1050-218 Lisbon, Portugal